Case Study - Carussi v Secretary of State: IA/22008/2010 (unreported)
Introduction
The Home office have consistently argued that Permanent Residence can only be acquired by European Nationals from the 'Accession States' such as Poland 1* and Romania five years post the accession of their countries to the European Union. The logic is that they were could not be residing 'in accordance with the Citizen's Directive' 2* (which governs the acquisition of Permanent Residence) until they were citizens of the EU; though this is controversial. The Directive merely requires that the residence be 'legal' 3* and the European Commission have written to the UK authorities challenging their approach. However, caselaw in the UK has followed the Secretary of State's position – until now. Duncan Lewis brought a successful appeal in the case of a Romanian national who sought to include time spent in the UK pre-accession.
Background
In 1993 Bulgaria and Romania signed the Association Agreements with EU member states which established the framework for their gradual integration into the European Union. The EC treaty provides under Article 310 EC that the Community may conclude with a third state, a union of states or an international organisation an agreement establishing association. Article 399 provides that such agreements shall be binding on the institutions of the Community and on member states. Agreements entered into by both the EC and Member states with a third party are mixed agreements , but do not for that reason cease to be enforceable Community Law. (See 7.152 MacDonald 7th Edition.) 4*The Association Agreement between Romania and EU member states provided for a right of establishment to pursue economic activities as a self employed person. It placed no limitation of the type of activity or duration for which it was required to last. Subject to the requirement that activity is effective and genuine, not marginal or ancillary a self employed Bulgarian window cleaner was just as able to qualify under the agreement as a graduate or an IT consultant. 5* On the 1st January 2007, Bulgaria and Romania acceded to the European Union. The Accession treaty provided that existing member states may, as a derogation from the usual position under Community Law, regulate access to their labour markets by Bulgarian and Romanian nationals and the 2006 Accession regulations were introduced to implement this regulation. Outside of the derogation for wage earning employment, Bulgarian and Romanian nationals enjoyed all other benefits of EU membership on the same basis as other member state.The decision in Carussi in the First Tier TribunalIn this case, a Romanian national was accepted by the Secretary of State to have been self employed for five years including a period prior to 2007 when the Appellant had exercised a right of establishment under the Association Agreement with Romania. On the 1st January 2007, following the implementation of the Accession Regulations, she became an EU national exercising this right.The Appellant did not satisfy the Tribunal that she qualified under the limited provisions made in the Immigration Rules (222 to 223 A), for those who were present in the United Kingdom under Association Agreements who then continued in self employment post accession, to be granted Indefinite Leave to Remain. However, these are subject to conditions which are not found in European Law, in respect of EU nationals in self employment seeking to establish themselves as qualified persons. For this reason, it is arguable that the Immigration Rules frustrated the ability of the Appellant in Carussi to acquire permanent residence, and therefore she relied upon the Citizens Directive upon directly.The Secretary of State maintained that the Appellant could not accrue permanent residence until 2012, five years after the Accession regulations came into force. However, the Appellant contended that she could satisfy the five years lawful residence in a member state criterion in accordance with Article 16 of the Directive at the date of the hearing, and that he was therefore entitled to Permanent Residence.The question of what defines "lawfully" resident for the purpose of Article 16 was considered in GN (EEA Regulations: Five years Residence) Hungary [2007] UKAIT 00073.The Appellant's submission incorporates an implication that that word means "lawfully" in accordance with national law. We see no basis for reading that meaning into the word "legally" in Article 16 of the Directive. When one sees a word of that sort in any legal instrument one interprets it normally within the instrument's own legal context. The context of the Directive is European Law, and for that reason we read "legally" in Article 16 (1) as meaning in accordance with European law. If there were any doubt about that it would in our view be resolved by paragraph 17 of the preamble to which the Appellant has referred us, which indicates that the intention is to give a right of permanent residence to those "who have resided in the host member state in compliance with the conditions laid down in this Directive" for five yearsThe case of Carussi was distinguishable from GN, by the reason that the Appellant who was the subject of proceeding was found to have exercised a right of establishment as a self employed person under the aegis of the Association Agreement prior to the 1st January 2007, and was therefore resident in the UK in accordance with Community law for the period prior to Romania's Accession to the EU. The tribunal held that this period could contribute to the five year period of lawful residence pursuant to Article 16 of the Directive.In contrast the Appellant in GN, prior to the accession of Hungary to the EU in 2004, was lawfully resident in the UK as a student in accordance with national law, and not under the Association Agreement between Hungary and the EU. It was after Hungary's accession that GN took up employment under the Workers Registration Scheme and began exercising treaty rights. 6*The implication of the decision is therefore that if residence was regulated by European law, albeit not by the Citizen's directive, that will satisfy the 'lawful residence' requirement of the Directive, whilst residence that is lawful solely on the basis of UK national law, that will not suffice for the purposes of Permanent Residence. This point has wider implications than are immediately apparent thanks to a recent decision that held that an application made on the basis of 'five years lawful residence' could be made years after the period had expired. Further challenges can confidently be expected.
Footnotes
1* The Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia, Malta and Cyprus joined the EU on 1st May 2004. Nationals of the "A8" countries, which exclude the two last-named countries do not yet possess full EU rights in the United Kingdom. The accession probation period for A8 nationals was extended for 2 more years from 30 April 2009. The Accession (immigration and Worker Registration) Regulations 2004 have been amended to show that the accession period will now end on 30 April 2011. Bulgaria and Romania joined the EU on 1st January 2007 and are accordingly known as the "A2" countries2*. The Directive on the right of EU citizens to move and reside freely in the European Union - Directive 2004/38/EC (often quoted as 2004/58/EC)3*. Article 16 of the Directive4*. Macdonald's Immigration Law and Practice 7th ed, Ian MacDonald and Ronan Toal, LexisNexis Butterworths (2008)5*.(Rodgers and Scannell 2004)6*. It should be noted that the approach of the Tribunal in GN led that appellant to petition the European Parliament. The petitions committee have taken up his case with the UK authorities.The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
SECRETARY OF STATE FOR WORK & PENSIONS v (1) EUNICE PAYNE (2) GAIL COOPER [2010] EWCA Civ 1431
As flagged in our earlier article 'Having your cake and eating it' The Secretary of State appealed against a decision ((2010) EWHC 2162 (Admin)) that he had unlawfully deducted sums from the social security benefits of the respondents (C and P). That appeal has now been decided.C had been overpaid incapacity benefit, and P had obtained a social fund loan that required repaying. Each obtained a debt relief order ('DRO') which had the effect of imposing a one-year moratorium on specified qualifying debts, which included the deductions, during which time the creditor had "no remedy in respect of the debt" pursuant to the Insolvency Act 1986 s.251G(2)(a).The Secretary of State began or continued to make the deductions after the orders were made, and C and P applied for judicial review. Cranston J held that "remedy" included the Secretary of State's powers to recover overpayments of benefits and repayment of social fund loans, with the effect that he was precluded from continuing to make the deductions from C and P's benefits after the debt recovery orders were made.The Secretary of State argued at first instance and upon appeal that s.251G(2)(a) should be construed narrowly so as to be consistent with the meaning given to "remedy against the property or person of the bankrupt" in s.285(3), which permitted the Secretary of State to make deductions during a benefit recipient's bankruptcy. He argued that there was no policy reason why Parliament should have wished to create a difference between an undischarged bankrupt and a debtor who had obtained a debt relief order, and that it was contrary to the "net entitlement principle": i.e. that a claimant for a prescribed benefit was only entitled to the net amount after any lawful deduction.Mummery L.J. agreed with the Secretary of State's argument. He stated that reliance on s.251(G)(2)(a) as a ground for invalidating the continuation in force of the statutory power to make deductions is misconceived. He held that the purpose of that section (similar to the purpose of s.285 in the case of bankruptcy orders) in placing an embargo on creditors' remedies during the moratorium period is to maintain the integrity of the insolvency process. It is not the purpose of the section to enhance the amount of social security benefits paid to the debtor during that period or to remove the specific statutory power conferred on the Secretary of State to make deductions from prescribed benefits in order to recover public money.Furthermore, he stated that he would have allowed the appeal as the judge was wrong to hold that the DROs obtained by the respondents rendered it unlawful for the Secretary of State to continue to make deductions from their prescribed benefits so as to recover the overpayments and the social fund loan during the moratorium period provided for under s251G of the 1986 Act.HELD: Mummery L.J dissenting as above. For the Secretary of State to deduct the amount owed by C and P from subsequent benefits would be to exercise a "remedy in respect of the debt" on the ordinary meaning of those words, contrary to s.251G(2)(a). There was nothing in the purpose of the debt relief order scheme or the moratorium period that lent support for giving a narrower than natural meaning to "remedy" in s.251G(2)(a). The words of s.251G(2)(a) and s.285(3) did not have the same natural meaning, and the respective schemes had different purposes. The bankruptcy scheme entailed preservation of the bankrupts' assets so that they should be available for fair distribution; by contrast, the purpose of the debt relief order scheme was unadulterated debt relief. The net entitlement principle did not assist with the statutory interpretation (see paras 77, 83-85, 95 of the judgment). As Toulson LJ acknowledged, this reasoning iss essentially the same as that of Cranston J below.Given the importance of the question, and the split decision in the Court of Appeal, there must now be a prospect that this question will have to be finally settled by the Supreme Court.
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